For almost two decades I presided over felony criminal trials in Onondaga County Court and New York State Supreme Court. I followed the recent criminal trial of Donald Trump on a daily basis, in a variety of news outlets, from beginning to end. I wholeheartedly believe that this trial was conducted fairly and the verdict must be accepted as such.
Trump had all of the rights guaranteed to every defendant prosecuted in the Courts of New York State. He exercised his right to confront and cross-examine the witnesses who testified against him. He exercised his right to call witnesses in his own defense. He could have exercised his right to testify in his own behalf and yet chose not to do so. His jury was comprised of twelve jurors and six alternates drawn from New York County after a thorough jury selection process. They were chosen and seated with the consent of his attorneys. After deliberating and considering all of the evidence adduced at the trial, they returned a verdict based upon that evidence. Trump was afforded all the due process he was entitled to.
The claims by Trump that the trial was” rigged” is of no moment when one scrutinizes the evidence presented at the trial. Of the 22 witnesses who testified, many were Trump insiders and they gave the most damning testimony.
David Packer, former publisher of the National Enquirer, testified about capturing and killing negative stories about Trump, including one involving Karen McDougall, a playboy centerfold, with whom Trump had an affair.
Rhona Graff was Trump’s longtime assistant at the Trump organization.
Hope Hicks was Trump’s 2016 campaign press secretary and one of his closest confidantes during his time as President.
Jeffrey McConney was the former controller at the Trump Organization. He processed the allegedly falsified records.
Deb Tarasoff a bookkeeper from the Trump Organization. She processed the allegedly falsified records.
Rebecca Manochio, a Trump Organization employee. She shipped checks to Trump for him to sign.
Madeleine Westerhout, Trump’s White House secretary, who witnessed Trump signing the checks to Michael Cohen.
All of these witnesses were employees or individuals that were part of Trump’s inner circle.
Michael Cohen, the architect of the scheme to silence Stormy Daniels, by paying her not to reveal her affair with Trump, was Trump’s in-house counsel and employee in the years leading up to the scheme and in the months after.
Stormy Daniels, of course, was the object of Trump’s desires and the person with whom he had the affair that he sought to hide before the election.
All of these individuals were prosecution witnesses and none of them were individuals employed by the Manhattan District Attorney’s Office. To suggest that their testimony was “rigged” is simply beyond ludicrous.
The guilty verdict on all 34 felony counts now begs the question, what sentence should be imposed to hold Trump accountable.
Judge Merchan has ordered a presentence investigation by the Court’s Probation Department which will encompass Trump’s conduct in committing the offenses and his ten Contempt of Court citations during the trial. It will include his extensive litigation history, his bankruptcies and the other conduct deemed relevant for the Court’s consideration. It will also include his age, his current health, his lack of a criminal record and that he served a term as President of the United States.
The Court will also have the benefit of a recommendation by the District Attorney of what he believes will constitute an appropriate sentence. Trump will be afforded the opportunity to submit his own pre-sentence memorandum urging a specific sentence, along with any letters attesting to his character.
Trump will have the opportunity to address the Judge at the time of his sentencing. Most defendants use this opportunity to express contrition or regret for their conduct in a bid for leniency. From my own experience a defendant’s comments can have an impact on the sentencing judge at the moment sentence is imposed. Given Trump’s track record of insulting the Court, its employees, the witnesses and the proceedings that led to his Contempt citations, any comments along these lines appear unlikely and would ring hollow.
Judge Merchan has a wide range of options from which to fashion an appropriate sentence. The maximum sentence that can be imposed for each felony that Trump was convicted of is an indeterminate range having a minimum of 1 1/3 years and a maximum of four years. The Judge could also impose a definite sentence of one year incarceration, a sentence of six months incarceration and five years’ probation or a conditional discharge involving no jail time but requiring Trump to meet conditions imposed by the Court. In theory, a sentence for each felony could be imposed to run consecutive to one another but almost every observer considers that to be highly unlikely. The maximum sentence of imprisonment might also be considered excessive by an appellate court but a sentence less than the maximum would not be viewed as such.
In deciding how best to hold Trump accountable Judge Merchan should consider that Michael Cohen, a co-conspirator, was sentenced to three years imprisonment for engaging in the same conduct that Trump was convicted of. Moreover, unlike Trump, Cohen admitted his guilt and was given the benefit of a sentencing reduction for his” acceptance of responsibility.” Another factor the judge should consider is Trump’s repeated defiance of the courts “gag order” during the trial. His repeated public attacks on the judge, his family, his staff, the district attorney, his staff and the witnesses amply demonstrate Trump’s belief that he is accountable to no one.
An additional consideration the judge should take into account is that the conduct underlying Trump’s convictions deprived voters that were choosing a candidate for the highest office in the land of information that may have directly impacted their choice. In short, the voters were the victims of these crimes. A sentence that is too lenient not only fails to hold Trump accountable for this conduct but also fails to dissuade any future candidate for office from engaging in this type of conduct.
I spent two decades in a court of the same level in which Judge Merchan now sits. Sentencing a defendant is never an easy task. I don’t envy Judge Merchan’s position but I am confident he will impose a fair and appropriate sentence that will hold Trump accountable and demonstrate to the public that this conduct has no place in our political system.